COURT FILE NO.: 586/06

DATE: 20070523

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: the college of physicians and surgeons (Applicant) v. SLEEP DISORDERS CENTRE OF METROPOLITAN TORONTO, SLEEP DISORDERS CENTRE –BRAMPTON, SLEEP DISORDERS CENTRE – RICHMOND HILL and SLEEP DISORDERS CENTRE – OTTAWA and THE DIRECTOR, INDEPENDENT HEALTH FACILITIES PROGRAM, HEALTH SERVICES APPEAL AND REVIEW BOARD (Respondents

BEFORE: Justices Matlow, Jennings and Ferrier

COUNSEL: Bernard C. LeBlanc, for the Applicant

Neil M. Abramson, for the Respondents

ENDORSEMENT AS TO COSTS

Jennings J.

[1] This application for judicial review was dismissed by this Court on January 25, 2007, the Court finding that the application was prematurely brought, and that “the hearing before the Tribunal be permitted to proceed to its finality.”

[2] The Court invited written submissions as to costs and has now had the benefit of those submissions from counsel for the applicant, College and counsel for the respondents, Sleep Disorders Centres. Costs were not sought by or against the Director.

[3] The hearing on the issue of prematurity required an attendance something in excess of 1½ hours. The issue of prematurity was at the full front of the submissions of both the applicant and respondents, and considerable portions of their facta were devoted to that issue. That notwithstanding, serious issues on the merits were raised by the applicant for which the respondent was required to prepare. Although in the result, no argument on the merits was heard, that was not something the respondents could predict with certainty, and they were required to prepare fully for an estimated half-day hearing.

[4] In our opinion, the respondents are entitled to their costs in this Court on a partial indemnity basis, and for an amount that might not otherwise be warranted by an appearance of 1½ hours.

[5] That being said, we are of the view that the respondents’ request for costs for $36,915 for fees is so substantially beyond what might reasonably be anticipated for costs (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.)) as to be unattainable.

[6] In our opinion, an order of $15,000 for costs, G.S.T., and disbursements, payable forthwith by the applicant to the respondents would be appropriate.

Jennings J.

Ferrier J.

DATE: May 23, 2007